By Alex Ruck Keene, 11th November 2020
Editorial Note: We invited Alex Ruck Keene to contribute a blog about advance decisions on intimacy after widespread engagement with our blog post about a hearing largely devoted to hearing expert evidence on P’s capacity to engage in sexual relations. Advance consent in the context of psychiatric treatment is explored in another OJCOP blog by Magdalena Furgalska (click here).
Individuals with impaired decision-making capacity who wish to express themselves sexually are caught between two competing legal and ethical policies. The first seeks to uphold the vital importance of consent to sexual activity; the second seeks to uphold the right for such individuals to respect to autonomy, privacy and the enjoyment of relationships on an equal basis with others.
The legal framework relating to capacity and sexual relations is complex, not least because it involves both the criminal sphere (in England & Wales, the Sexual Offences Act 2003) and the civil sphere (the Mental Capacity Act 2005). The English courts have returned repeatedly to the question of what it is to have decision-making capacity in relation to sexual relations, most recently in the case of A Local Authority v JB  EWCA Civ 735.
As Sir Mark Hedley identified in CH v A Metropolitan Council  EWCOP 12:
Society’s entirely proper concern to protect those who are particularly vulnerable may lead to surprising, perhaps even unforeseen consequences. Such, however, may be the price of protection for all.
The consequences appear to be particularly surprising in the context of those with dementia, who may previously have enjoyed sexual activity with a partner but now cannot be said (on even the most expansive approach) to have capacity to engage in sexual relations. At that point, very difficult questions arise as to whether they should be stopped from doing so as to prevent their partner from being exposed to a risk of prosecution, or (where relevant) to stop support workers or others from also being expose to such a risk.
In an article shortly to be published in The Gerontologist, a proposal is advanced for an “advance decision on intimacy” to enable people who are living with dementia to make decisions about how they would wish to express their sexuality at a material time in future when they would have lost capacity to consent to such acts. The proposal builds on recognised models of advance decision-making contained within the Mental Capacity Act 2005 to tease out how such an instrument could be created, what conditions might be required for it to be valid, and what complexities it gives rise to.
From ‘stress-testing’ the proposal in different settings, it is clear that the proposal gives rise to strong feelings – both acknowledgement of the potential benefits, and of the possible downsides. It also poses challenges to conceptions of what we are willing to empower people to decide about in advance, and about how expressions of sexual preference could be ‘housed’ within such decisions where they may clash with the views of others around the person about what they consider to be acceptable. At a minimum, though, what is currently a thought-experiment may help focus attention on whether it is really necessary for all those living with dementia to pay the price identified by Sir Mark Hedley, or whether there is another way in which to achieve the same goals.
Alex Ruck Keene has been in practice at 39 Essex Chambers in London since 2003 and specialises in the field of mental capacity and mental health law. He blogs regularly here: https://www.mentalcapacitylawandpolicy.org.uk
 Sorinmade, O., Ruck Keene, A., & Peisah, C. (2020). Dementia, Sexuality and the Law: The Case for Advance Decisions on Intimacy. The Gerontologist.